The Boston bomber, Miranda rights and Israel

How will the debate in the US on the rights of terror suspects impact how Israeli courts try to strike a balance with public safety?

By YONAH JEREMY BOB
Boston police manhunt 370 (photo credit: Brian Snyder/Reuters)
Boston police manhunt 370
(photo credit: Brian Snyder/Reuters)
Following the US government’s decision to question the living Boston bomber suspect, Dzhokhar Tsarnaev, for 16 hours before reading him his Miranda rights, the never-ending debate about balancing a terror suspect’s rights with public safety is back in the headlines.
The debate is at least as fluid in Israel as in America, and the US’s conclusions have and are likely to continue to have a significant impact on how Israeli judges and lawyers end up striking a balance.
Miranda rights or warnings, as made famous in movies, involve the obligation of a policeman to tell a criminal suspect who he has just been arrested that they have the right to remain silent, the right to an attorney and other rights, before asking them any questions about the crime.
Miranda solidified some preexisting common law defenses against self-incrimination and was imported, to differing extents, from the US to Israel and many other countries.
Instances where police failed to issue Miranda-type warnings to a suspect have been the basis of countless instances where Israeli courts have thrown out otherwise solid cases.
But what happens in the US when it comes to balancing suspects’ rights with strong anti-terror and public safety policies has impacted Israel in a much stronger way.
Former Supreme Court president Aharon Barak started the prevalent trend of reviewing numerous foreign legal practices, especially those of the US, when deciding important cases implicating constitutional rights.
While his successors may not be as enamored as Barak with American legal trends, the Supreme Court continues the review, and at least sometimes, exhibits significant deference to such trends.
The court is not the only place this occurs.
In the IDF, the Foreign Ministry and the Turkel Commission’s position papers and reports, which responded to and evaluated allegations of violations of the laws of armed conflict and detainee rights during Operation Cast Lead and the 2010 flotilla, the US position was always reviewed in detail.
Mostly, the US position has had the impact of moderating the Israeli position and pulling it more in the direction of suspects’ rights, at the expense of giving public safety complete ascendancy.
But there have been instances in the opposite direction. For years, Israel was criticized for “targeted assassinations” and torture, and of not granting full Miranda and other rights to detainees suspected of terrorism.
But not long after September 11, 2001, when the US started to regularly carry out targeted assassinations, the Israeli Supreme Court endorsed the legality, in defined circumstances, of targeted assassinations. Criticism against Israel for its handling of detainee rights, at least from the US and some other Western countries, became muted.
Israel also legislated several new laws to empower the Shin Bet (Israel Security Agency) and other law enforcement agencies to interrogate and detain terror suspects for much longer amounts of time than normally allowed, and not bring them before a judge or grant them access to a lawyer for longer than usual.
One such 2006 emergency law, which must be periodically extended, was just extended again on Monday for another two years.
But what was the exact debate in regard to the questioning of the Boston bomber for 16 hours without Miranda warnings, and where more specifically could that impact the debate in Israel? Miranda itself dates back to around 50 years ago, as part of a defense of the US 5th Amendment right against self-incrimination.
In the early 1980s, a “public safety” exception was created that allowed law enforcement to question suspects prior to giving them Miranda warnings, if they believed that the immediate questioning was necessary to address an ongoing danger to public safety.
The public safety exception has developed and been defined further since then. In 2000, a terror suspect named Abu Mezer, who like the Boston bomber, was questioned without Miranda warnings while lying injured on his hospital bed, challenged a specific question from police as being more about delving into the past than trying to prevent a future attack. The line of questioning mostly related to potentially disarming bombs that the police believed were still in play, but the suspect objected to police having questioned him about whether he had planned to blow himself up – to which he had answered “poof.” The suspect said that his “poof” answer was about a possible past threat only, not anything in the future, in which case it could not fit the “public safety” exception and violated his Miranda rights.
The US Second Circuit Court of Appeals disagreed, holding that his whispering “poof” on his hospital bed could be used against him to show he was planning on carrying out a suicide bombing. The circuit court noted that “Abu Mezer’s vision as to whether or not he would survive his attempt to detonate the bomb had the potential for shedding light on the bomb’s stability.”
There have been widespread objections to questioning the Boston bomber based on the idea that by the time he was caught and questioned on his hospital bed, it had been clear for days there was no ongoing danger.
In battling these objections later in court, the US government may try to rely on the Abu Mezer case to argue that its questioning of the bomber had some potential to “shed light” on potential future threats.
In fact, the bomber not only admitted to his involvement in the bombing, but also reportedly told investigators that he and his brother, Tamerlan, had planned a future attack on New York.
Incidentally, as soon as he was given his Miranda warning after the 16 hours, the bomber completely ceased talking to investigators.
Still, the bomber’s defense team will likely try to convince the court that this threat was not imminent when the bomber was heavily injured and could barely talk.
They will also likely attack the idea that the statements were given voluntarily, a requirement even for the safety exception to apply, since the bomber was questioned while ailing on his hospital bed, mostly writing answers since he could not speak.
The US government will need to argue that as in Abu Mezer’s case, who was also questioned in the hospital, the key issue was not whether the bomber was in pain, but that he “was alert, seemed to understand the questions and gave responsive answers.”
Proponents of questioning the bomber without Miranda warnings, some wanting even to declare him an illegal combatant to whisk him off to a secret prison, said that it is exceedingly rare that domestic terrorists are captured, and that questioning him without Miranda warnings could also have been a unique intelligence opportunity to understand his network and motivations.
Some of these proponents are now even blasting the government from the other side – criticizing that Miranda warnings were given after “only” 16 hours of questioning.
Although the US government did not go as far as these detractors wanted, it has emerged that since 2010, including in this incident, there has been standing executive permission in questioning suspects for intelligence-gathering in terror cases, which in some circumstances allows law enforcement to go beyond the traditional interpretation of the public safety exception.
One specific Israeli area that could be heavily impacted by the US’s initial questioning without a Miranda warning, and the court’s decision if the answers to the questioning are upheld, is the application of a well-known Israeli Miranda-type case known as Yisascharov, dating to 1996.
The main point of Yisascharov was that courts would throw out evidence in a situation where a suspect was questioned without being informed of all his rights, specifically in that case his right to consult a lawyer.
However, now there are many exceptions to Yisascharov, which allow weighing the failure to inform a suspect of his rights as just one of many key factors in deciding whether a court will accept a piece of evidence – and not as something that automatically requires throwing out the evidence.
The debate in Israel about how to apply Yisascharov and its exceptions is still hot, and one judge, Asher D. Grunis, who was in the minority against the entire Yisascharov ruling, voting there to allow the evidence, is now Supreme Court president.
While the emergency law reducing the rights of terror suspects to access to the courts and to lawyers was extended this week, the vote was a narrow 5-4, with many MKs unimpressed even by the pleadings of the head of the Shin Bet’s investigations unit that these powers were needed to save lives.
In this environment, the US initial decision and any supporting decision to follow by US courts is likely to empower those demanding stronger powers for law enforcement, and to disempower those fighting on behalf of suspects’ rights.